OFFICE OF THE ASSISTANT SECRETARY

In recent years, many state departments of education and local school districts
have taken steps to reduce bullying in schools. The U.S. Department of Education
(Department) fully supports these efforts. Bullying fosters a climate of fear
and disrespect that can seriously impair the physical and psychological health
of its victims and create conditions that negatively affect learning, thereby
undermining the ability of students to achieve their full potential. The movement
to adopt anti-bullying policies reflects schools’ appreciation of their important
responsibility to maintain a safe learning environment for all students. I
am writing to remind you, however, that some student misconduct that falls
under a school’s anti-bullying policy also may trigger responsibilities under
one or more of the federal antidiscrimination laws enforced by the Department’s
Office for Civil Rights (OCR). As discussed in more detail below, by limiting
its response to a specific application of its anti-bullying disciplinary policy,
a school may fail to properly consider whether the student misconduct also
results in discriminatory harassment.

The statutes that OCR enforces include Title VI of the Civil Rights Act of
19641 (Title VI),
which prohibits discrimination on the basis of race, color, or national origin;
Title IX of the Education Amendments of 19722 (Title
IX), which prohibits discrimination on the basis of sex; Section 504 of the
Rehabilitation Act of 19733 (Section
504); and Title II of the Americans with Disabilities Act of 19904 (Title
II). Section 504 and Title II prohibit discrimination on the basis of disability.5 School districts may violate these civil rights statutes and the Department’s
implementing regulations when peer harassment based on race, color, national
origin, sex, or disability is sufficiently serious that it creates a hostile
environment and such harassment is encouraged, tolerated, not adequately addressed,
or ignored by school employees.6
School personnel who understand their legal obligations to address harassment
under these laws are in the best position to prevent it from occurring and
to respond appropriately when it does. Although this letter focuses on the
elementary and secondary school context, the legal principles also apply to
postsecondary institutions covered by the laws and regulations enforced by
OCR.

Some school anti-bullying policies already may list classes or traits on which
bases bullying or harassment is specifically prohibited. Indeed, many schools
have adopted anti-bullying policies that go beyond prohibiting bullying on the
basis of traits expressly protected by the federal civil

1 42
U.S.C. § 2000d et seq. 2 20 U.S.C. §
1681 et seq.3 29 U.S.C. §
794.4 42 U.S.C. §
12131 et seq.5 OCR also enforces
the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq.,
and the Boy Scouts of America Equal Access Act, 20 U.S.C. § 7905.
This letter does not specifically address those statutes.6 The Department’s
regulations implementing these statutes are in 34 C.F.R. parts 100, 104,
and 106. Under these federal civil rights laws and regulations, students
are protected from harassment by school employees, other students, and
third parties. This guidance focuses on peer harassment, and articulates
the legal standards that apply in administrative enforcement and in court
cases where plaintiffs are seeking injunctive relief.